State of Louisiana v. Jacob Purvis AKA Jacob Dewayne Purvis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1013

STATE OF LOUISIANA

VERSUS

JACOB PURVIS

AKA JACOB DEWAYNE PURVIS

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 15-0930
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Van H. Kyzar, Judges.

VACATED, WITH INSTRUCTIONS.

Kyzar, J., dissents with written reasons.

James P. Lemoine
District Attorney
James D. White, Jr.
Rhea Renee Nugent
Assistant District Attorneys
Thirty-Fifth Judicial District
P.O. Box 309
Colfax, LA 71417
(318) 627-2971
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P.O.Box 2125
Lafayette, LA 70502-2125
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Jacob Purvis

SAUNDERS, Judge.

Defendant, Jacob Purvis, was convicted of aggravated arson, a violation of

La.R.S. 14:51, and sentenced to twelve years at hard labor, with the first two years

of the sentence to be served without benefit of probation, parole, or suspension of

sentence, to run consecutively with any other sentence. Defendant was also

ordered to pay a $5,000.00 fine, court costs, and a $1,000.00 fee to the Public

Defender’s Office. The Defendant’s conviction and sentence were affirmed on

appeal. State v. Purvis, 16-816 (La.App. 3 Cir. 4/12/17), 217 So.3d 470.

Defendant is before the court again as the result of a habitual offender

proceeding. On October 4, 2016, the State filed a bill of information charging

Defendant as a third felony offender pursuant to La.R.S. 15:529.1. Defendant was

adjudicated a third offender at a hearing held on July 31, 2017. The trial court

then vacated Defendant’s twelve-year sentence and sentenced him to serve forty

years at hard labor without benefit of probation, parole, or suspension of sentence,

which was a deviation from the mandatory sentence of life imprisonment. Written

reasons for judgment were issued by the trial court on August 3, 3017. A motion

to reconsider sentence was filed on August 21, 2017, and was denied. A motion

for appeal was filed on August 21, 2017, and was granted.

Defendant’s appeal was lodged with this court on October 31, 2017.

Therein, Defendant asserts that the trial court erred in sentencing him under the

habitual offender sentencing scheme that was operative prior to November 1, 2017.

FACTS:

The facts supporting the underlying conviction of aggravated arson were set

forth in Purvis, 217 So.3d at 472, as follows:

Defendant lived in a double-wide trailer with his mother, uncle,
sister, and his sister’s two daughters. During the morning of
September 16, 2015, Defendant and his sister were arguing inside the

trailer when he allegedly threatened to burn it down. He exited the
trailer, threw a bug zapper against the wall on the front porch, and
walked to the side of the house. A few minutes later, the trailer caught
on fire and ended in a total loss. The occupants inside the trailer at the
time, Defendant’s sister, one of her daughters, and his uncle, exited
before it burned down. Defendant’s sister and her daughter received
injuries from being burned as they exited the trailer.

At the habitual offender hearing, the trial court found Defendant had

previously been convicted of operation of a clandestine laboratory on March 20,

2009, and conspiracy to produce methamphetamine on May 3, 2012. He was then

sentenced as a third offender on his conviction for aggravated arson. The trial

court gave the following reasons for its deviation from the mandatory sentence of

life imprisonment: “Mr. Purvis, due to your age and due to the current push to

reduce the incarcerations . . . the Court does find that imprisonment for your

natural life without benefit would be excessive.” In its written reasons for

judgment, the trial court additionally stated: “Considering the Defendant’s age, his

alleged addiction, combined with the fact that he has both the mental and physical

ability to be a productive member of society, the trial court found that the

mandatory life sentence would be constitutionally excessive under the

circumstances.”

ASSIGNMENT OF ERROR:

In his only assignment of error, Defendant contends that the trial court erred

in sentencing him under the prior version of La.R.S. 15:529.1. He argues that his

conviction for aggravated arson was not final at the time of his habitual offender

sentencing. Therefore, he should have been sentenced under the new version of

the statute, which applies to offenders whose convictions “became final on or after

November 1, 2017.” We find merit to this contention.

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Habitual Offender Statute

The habitual offender statute in effect at the time Defendant committed the

offense of aggravated arson, was convicted thereof, and was adjudicated a habitual

offender and sentenced accordingly provided, in pertinent part:

(3) If the third felony is such that upon a first conviction, the
offender would be punishable by imprisonment for any term less than
his natural life then:

(a) The person shall be sentenced to imprisonment for a
determinate term not less than two-thirds of the longest possible
sentence for the conviction and not more than twice the longest
possible sentence prescribed for a first conviction; or

(b) If the third felony and the two prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), a sex offense as
defined in R.S. 15:540 et seq. when the victim is under the age of
eighteen at the time of commission of the offense, or as a violation of
the Uniform Controlled Dangerous Substances Law punishable by
imprisonment for ten years or more, or any other crimes punishable by
imprisonment for twelve years or more, or any combination of such
crimes, the person shall be imprisoned for the remainder of his natural
life, without benefit of parole, probation, or suspension of sentence.

La.R.S. 15:529.1.

Louisiana Revised Statutes 15:529.1 was amended by 2017 La. Acts No.

257, §1 and 2017 La. Acts No. 282, §1 and now provides, in part:

(3) If the third felony is such that upon a first conviction, the
offender would be punishable by imprisonment for any term less than
his natural life then the following sentences apply:

(a) The person shall be sentenced to imprisonment for a
determinate term not less than one-half of the longest possible
sentence for the conviction and not more than twice the longest
possible sentence prescribed for a first conviction.

(b) If the third felony and the two prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), or a sex offense as
defined in R.S. 15:541 when the victim is under the age of eighteen at
the time of commission of the offense, or any combination of such
crimes, the person shall be imprisoned for the remainder of his natural
life, without benefit of parole, probation, or suspension of sentence.

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Acst 257 and 282 both explicitly provide that their provisions “shall become

effective November 1, 2017, and shall have prospective application only to

offenders whose convictions became final on or after November 1, 2017.” 2017

La. Acts 257, § 2; 2017 La. Acts 282, § 2.

The ameliorative changes made to La.R.S. 15:529.1 drastically reduced

Defendant’s sentencing exposure. Defendant’s prior felonies, conspiracy to

produce methamphetamine and operation of a clandestine laboratory, are both

violations of the Uniform Controlled Dangerous Substance Law punishable by ten

or more years, and Defendant’s current offense, aggravated arson, is a crime of

violence. See La.R.S. 14:26; La.R.S. 40:967; La.R.S. 40:983; La.R.S. 14:2(B)(18);

La.R.S. 14:51. Thus, under the prior version of La.R.S. 15:529.1(A)(3)(b)

Defendant was subject to a mandatory sentence of life imprisonment without

benefits. The relevant amendments to La.R.S. 15:529.1(A)(3)(b) removed persons

with a current or prior felony that was a violation of the Uniform Controlled

Dangerous Substance Law punishable for ten years or more years from the group

of persons subject to a life sentence as a third felony offender. Consequently, if the

amended version of the habitual offender law is applicable to Defendant’s

adjudication as a third felony offender, Defendant would be subject to a sentence

of ten to forty years, with two years of the sentence to be served without benefit of

parole. See La.R.S. 15:529.1(A)(3)(a); La.R.S. 14:51; State v. Bentley, 15-598

(La.App. 3 Cir. 2/3/16), 185 So.3d 254.

Arguments of the Parties

Defendant notes that the bills amending La.R.S. 15:529.1 were signed by the

Governor on June 15, 2017, and became effective November 1, 2017. He admits

that the version of La.R.S. 15:529.1 under which he was sentenced as a habitual

offender was still in effect at the time he was sentenced. However, his conviction
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for aggravated arson was not yet final because his pro se writ application was

pending before the supreme court at the time of the habitual offender proceeding.

Defendant points out that the new law does not state it is effective for new criminal

activity occurring after November 1, 2017. Instead, it applies to convictions that

“became final” on or after November 1, 2017. Thus, he suggests a ruling on the

habitual offender bill filed in his case should have been postponed.

Defendant argues that the trial court’s downward departure from the

mandatory sentence provided for under the prior law does not affect which version

of La.R.S. 15:529.1 is applicable to his case. Defendant notes that the State is not

required to wait until after all appellate rights are exhausted before pursuing a

habitual offender sentence and that the laws governing convictions regularly

change from year to year. He, however, asserts that the timing of this case is

unique and asks this court to vacate the sentence imposed on July 31, 2017, and

remand the matter for resentencing under the amended version of La.R.S.

15:529.1.

The State acknowledges that Defendant’s pro se writ application is pending

in the supreme court. However, according to State v. Parker, 03-924 (La. 4/14/04),

871 So.2d 317, a habitual offender proceeding does not result in a conviction but is

simply an enhanced penalty, and the sentence to be imposed is that in effect at the

time of the commission of the offense. The State also discusses State v. Boutte,

10-928 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, writ denied, 11-689 (La. 10/7/11),

71 So.3d 314. Therein, this court found Defendant’s underlying conviction did not

have to be final before an enhanced sentence for that offense could be imposed in a

habitual offender proceeding. The State concludes that Defendant was sentenced

under the correct version of La.R.S. 15:529.1.

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Analysis

In Parker, 871 So.2d at 322-26, (alterations in original) the supreme court

addressed whether a defendant should be sentenced according to the habitual

offender law in effect at the time of the commission of the offense or that in effect

at the time of the habitual offender adjudication and sentencing:

[T]his court has consistently held that habitual offender proceedings
do not charge a separate crime but merely constitute ancillary
sentencing proceedings such that the punishment for a new conviction
is enhanced. See State v. Dorthey, 623 So.2d 1276, 1278-79
(La.1993); State v. Walker, 416 So.2d 534, 536 (La.1982); State v.
Williams, 326 So.2d 815, 818 (La.1976). Additionally, it is generally
settled that the law in effect at the time of the commission of the
offense is determinative of the penalty which is to be imposed upon
the convicted accused. See State v. Narcisse, 426 So.2d 118, 130
(La.1983). State v. Wright, 384 So.2d 399, 401 (La.1980); State v.
Gros, 205 La. 935, 938, 18 So.2d 507, 507 (1944), cert. denied, 326
U.S. 766, 66 S.Ct. 170, 90 L.Ed. 462 (1945). Finally, “[t]he mere fact
that a statute may be subsequently amended, after the commission of
the crime, so as to modify or lessen the possible penalty to be
imposed, does not extinguish liability for the offense committed under
the former statute.” Narcisse, 426 So.2d at 130.

. . . .

. . . While it is true La. R.S. 15:529.1(D)(3) provides that
defendant shall be sentenced as a habitual offender only “[w]hen the
judge finds” that he has been convicted of a prior felony or felonies,
this language merely references the determination required to be made
by the judge at the conclusion of the habitual offender hearing. A
defendant is not convicted of being a habitual offender. Rather, a
defendant is adjudicated a habitual offender as a result of prior felony
convictions. The sentence to be imposed following a habitual offender
adjudication is simply an enhanced penalty for the underlying
conviction.

. . ..

Policy considerations also convince us that the applicable
penalty provision is that existing on the date of the commission of the
offense. The contrary determination that defendant is subject to the
penalty provision in effect at the time of his adjudication as a habitual
offender would allow the district attorney, rather than defendant’s
own act, to control the fixing of defendant’s status as a habitual
offender and the applicable penalty depending on when the habitual
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offender bill is filed. Concomitantly, if we were to adopt the position
that the date of the habitual offender adjudication fixes the applicable
penalty provision, some defendants might be encouraged to delay
proceedings to coincide with the effective dates of more lenient
sentencing provisions. Either of these situations would wreak havoc
with our sense of fairness, and, in a practical sense, with the dockets
of the courts.

In the instant matter, we find that pursuant to Parker, the trial court properly

sentenced Defendant under the version of La.R.S. 15:529.1 that existed at the time

he committed the offense of aggravated arson. The language of Section 2 of both

Acts 257 and 282 points to the legislature’s intent for the amendments to La.R.S.

15:529.1 to apply prospectively only. However, the legislature stated that the

amendments were applicable to convictions that “became final” after November 1,

2017.

Louisiana Supreme Court Rule X, § 5(a) provides for the filing of writ

applications as follows:

An application seeking to review a judgment of the court of
appeal either after an appeal to that court, or after that court has
granted relief on an application for supervisory writs (but not when
the court has merely granted an application for purposes of further
consideration), or after a denial of an application, shall be made
within thirty days of the mailing of the notice of the original judgment
of the court of appeal; however, if a timely application for rehearing
has been filed in the court of appeal in those instances where a
rehearing is allowed, the application shall be made within thirty days
of the mailing of the notice of denial of rehearing or the judgment on
rehearing. No extension of time therefor will be granted.

Louisiana Code of Criminal Procedure Article 922 address the finality of

judgments on appeal:

A. Within fourteen days of rendition of the judgment of the
supreme court or any appellate court, in term time or out, a party may
apply to the appropriate court for a rehearing. The court may act upon
the application at any time.

B. A judgment rendered by the supreme court or other appellate
court becomes final when the delay for applying for a rehearing has
expired and no application therefor has been made.

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C. If an application for a rehearing has been made timely, a
judgment of the appellate court becomes final when the application is
denied.

D. If an application for a writ of review is timely filed with the
supreme court, the judgment of the appellate court from which the
writ of review is sought becomes final when the supreme court denies
the writ.

This court’s opinion in Purvis, 217 So.3d 470, was rendered on April 12,

2017. All parties agree Defendant filed a writ application with the supreme court.

A letter received by this court in Defendant’s prior appeal on June 12, 2017, from

the Louisiana Supreme Court states: “This is to advise that the pleadings in the

above entitled matter were received and filed on 6/5/2017. The filing was post

marked on 5/8/2017.” In that writ application, Defendant sought review of this

court’s ruling in Purvis.

Defendant’s writ application was timely filed in the supreme court. Pursuant

to La.Code Crim.P. art. 922(B), Defendant’s conviction for aggravated arson will

become final when the supreme court issues a ruling on that writ application and

the delays for applying for a rehearing have lapsed and no application for rehearing

has been made. Defendant’s writ application is still outstanding. Therefore, his

aggravated arson conviction is not yet final and will become so after November 1,

2017. Accordingly, we find that the amended version of La.R.S. 15:529.1 is now

applicable to Defendant.

The fourth circuit has addressed the applicability of the 2017 amendments to

La.R.S. 15:529.1 to a defendant sentenced prior to the effective date thereof. On

appeal, the defendant in State v. Smith, 17-553, p. 14 (La.App. 4 Cir. 12/13/17),

__So.3d__, __ , argued that he was entitled to the application of “‘Act 282 and Act

[Senate Bill# 139] effective August 1, 2017.’” The fourth circuit addressed the

issue stating:

8

Acts 2017, No. 282, § 1, eff. Nov. 1, 2017, in pertinent part,
amended the Habitual Offender Law to provide that the sentence for a
second felony offender to be “not less than one-third the longest term
and not more than twice the longest term prescribed for a first
conviction.” Previously, La. R.S. 15:579.1(A)(1) [sic] provided the
minimum sentence to be one-half the longest term. Additionally,
Section 2 of Acts 2017, No. 282 provides:

This Act shall become effective November 1,
2017, and shall have prospective application only to
offenders whose convictions became final on or after
November 1, 2017.

Pursuant to Section 2, the amended provisions of La. R.S.
15:579.1(A)(1) [sic] are inapplicable to Smith’s sentence which was
imposed on September 8, 2016. The assignment of error lacks merit.

Id. (footnote omitted). The fourth circuit, which incorrectly cited the habitual

offender law as La.R.S. 15:579.1, did not delve into the wording of Section 2, did

not address the finality of the defendant’s conviction, or set forth any jurisprudence

to support its conclusion. In fact, appellate counsel filed a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and the issue was raised pro se.

In the instant matter, Defendant, like the defendant in Smith, was sentenced

prior to November 1, 2017. However, Defendant’s aggravated arson conviction is

not yet final, and will become so after November 1, 2017. As such, we find that

the language of Section 2 of Acts 257 and 282, applying the amended provisions of

La.R.S. 15:529.1 to convictions that “became final on or after November 1, 2017,”

is applicable to Defendant. Accordingly, we vacate the trial court’s ruling.

CONCLUSION:

For the foregoing reasons, we vacate Defendant’s habitual offender

sentence and remand the matter for resentencing under the version of La.R.S.

15:529.1 that became effective on November 1, 2017.

VACATED, WITH INSTRUCTIONS.

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KYZAR, J., DISSENTS:

Defendant, sentenced as a habitual offender on July 31, 2017, asserts on

appeal that the trial court erred in sentencing him under the habitual offender

sentencing scheme that was operative prior to November 1, 2017, contending that

he should have been sentenced under the new version of the law that became

effective November 1, 2017. The habitual offender enhanced sentencing

provision, La.R.S. 15:529.1, in effect at the time of the offense committed in the

case, aggravated arson, provided for a life sentence for this Defendant who had

been convicted previously of two prior violations of the Louisiana Uniform

Controlled Dangerous Substance Law for offenses punishable by at least ten years

in prison. At sentencing, the trial court in his discretion departed downward from

the life sentence finding that such would be constitutionally excessive in this case.

That decision is not at issue here. Louisiana Revised Statutes 15:529.1 was

amended by 2017 La. Acts No. 257, §1 and 2017 La. Acts No. 282, §1 and now

provides in pertinent part:

(A) . . . (3) If the third felony is such that upon a first conviction, the
offender would be punishable by imprisonment for any term less than
his natural life then the following sentences apply:

(a) The person shall be sentenced to imprisonment for a
determinate term not less than one-half of the longest possible
sentence for the conviction and not more than twice the longest
possible sentence prescribed for a first conviction.

(b) If the third felony and the two prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), or a sex offense as
defined in R.S. 15:541 when the victim is under the age of eighteen at
the time of commission of the offense, or any combination of such
crimes, the person shall be imprisoned for the remainder of his natural
life, without benefit of parole, probation, or suspension of sentence.

Applying the prior version of La.R.S. 15:529.1 would require that

Defendant’s sentence be affirmed. Under the new version, the sentence range for

this Defendant becomes a sentence of ten to forty years, with two years of the
10

sentence to be served without benefit of parole, given that the maximum sentence

for aggravated arson is twenty years. La.R.S. 14:51.

Act 257 and Act 282 both explicitly provide that their provisions “shall

become effective November 1, 2017, and shall have prospective application only to

offenders whose convictions became final on or after November 1, 2017.” 2017

La. Acts No. 257, § 2; 2017 La. Acts No. 282, § 2 (emphasis added).

The majority concludes that because Defendant’s aggravated arson

conviction is not now final and will not become final until sometime in the future,

the revised version of the Habitual Offender Law, La.R.S. 15:529.1, applied to his

proceeding. Thus, the majority incorrectly proposes to vacate Defendant’s

sentence and remand for resentencing under the revised version.

I disagree with the majority based on my reading of the legislative intent

provision. The plain reading of the legislative language is that the revised version

of La.R.S. 15:529.1 applies prospectively only, not retroactively, and then only to

those convictions that are final on or after November 1, 2017. The Defendant here

was adjudicated and sentenced as a habitual offender on July 31, 2017; thus, the

revised version of La.R.S. 15:529.1 as per 2017 La. Acts No. 257, § 2 and 2017

La. Acts No. 282, § 2 could not have applied. Nothing in the language of the acts

allows for retroactive application of the statute before November 1, 2017. Further,

the legislature specifically chose to utilize the wording “became final on or after

November 1, 2017,” whereas the majority’s conclusion essentially changes the

meaning of the phrase to “becomes final on or after November 1, 2017.” While

seemingly a minor distinction of semantics, it has significant consequences. A

habitual offender proceeding does not result in a conviction but is simply an

enhanced penalty, and the sentence to be imposed is that in effect at the time of the

commission of the offense. State v. Parker, 03-924 (La. 4/14/04), 871 So.2d 317.
11

An underlying conviction does not have to be final before an enhanced sentence

for that offense can be imposed in a habitual offender proceeding. State v. Boutte,

10-928 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, writ denied, 11-689 (La. 10/7/11),

71 So.3d 314. In State v. Smith, 17-553 (La.App. 4 Cir. 12/13/17), the defendant

argued that he was entitled to the application of “‘Act 282 and Act [Senate Bill #

139] effective August 1, 2017.’” The fourth circuit addressed the issue stating:

Acts 2017, No. 282, § 1, eff. Nov. 1, 2017, in pertinent part,
amended the Habitual Offender Law to provide that the sentence for a
second felony offender to be “not less than one-third the longest term
and not more than twice the longest term prescribed for a first
conviction.” Previously, La. R.S. [15:529.1(A)] provided the
minimum sentence to be one-half the longest term. Additionally,
Section 2 of Acts 2017, No. 282 provides:

This Act shall become effective November 1, 2017, and
shall have prospective application only to offenders
whose convictions became final on or after November 1,
2017.

Pursuant to Section 2, the amended provisions of La. R.S.
[15:529.1(A)] are inapplicable to Smith’s sentence which was
imposed on September 8, 2016. The assignment of error lacks merit.

Id. at 14.

This is precisely the case here, as Defendant was adjudicated and

sentenced as a habitual offender on July 31, 2017, well prior to the

November 1, 2017 effective date of the acts. Because Defendant’s habitual

offender hearing and enhanced sentence imposed as a result occurred before

November 1, 2017, the prior version of the statute was correctly applied, and

the sentence imposed by the trial court must be affirmed.

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